Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. The website is at www.truthinjustice.org.

Thursday, March 12, 2015

Scalia’s Embarrassing Question: Innocence is not enough to get you out of prison.

The following analysis by Laura Bazelon was published in Slate on March 11, 2015.

In May, the Innocence Network
will hold its annual conference at a glitzy Hilton in Orlando, Florida.
Lawyers, students, and activists from all over the country who work to
overturn wrongful convictions will gather to do all the regular
conference-like things: attend panel discussions, listen to
inspirational talks from boldface speakers, network, and socialize.
There is also a part of the Innocence Network Conference that is unique
and wonderful. Every year, it brings together scores of wrongfully
convicted men and women, offering a variety of programs geared toward
their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in
the hotel’s ballroom, when each exonerated man and woman is invited up
to the stage. One by one, they come forward. They are male, female,
black, white, Latino, Asian, and Native American. Some are still young
and strong, others walk slowly and with assistance. They hail from the
Deep South, the Midwest, the Rockies, the East and West coasts, from big
cities and tiny rural communities. As their names are called, so are
the number of years they served behind bars: five, eight, 13, 18, 28,
34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then
another. When every last exoneree has taken his or her place, scores of
them are standing shoulder to shoulder, a dizzying tableau of faces and
stolen lives. The weight of the collective injustice is heart-stopping.
Then the music starts and the exonerees sing and dance together. The
hope and joy in the room is deeply moving.

But here is a dirty little secret about the exonerated, some of whom
were on death row, some just days away from execution. They were able to
prove that they were wrongfully convicted, yet very, very few could
show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal
process—what the uninitiated like to call a “technical error.”
Prosecutors buried crucial evidence, witnesses lied, police coerced
false confessions, defense attorneys performed so poorly that they
basically failed to advocate at all. These “technical” breakdowns matter
because they violate the Constitution, which guarantees all criminal
defendants the right to be free from police and prosecutorial abuses, to
have access to favorable evidence in the state’s possession, and to
have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is
extremely difficult—if not outright impossible—to win your case by
advancing the simple argument that you are innocent. Sounds crazy,
right? But it’s true. The Supreme Court has repeatedly declined to hold
that the federal Constitution allows for so-called freestanding claims
of innocence, that is, the right to be let out of prison simply because
you didn’t do it, without any other “technical” violation to back up
your argument. In the United States, the inmate who raises a compelling
case of innocence after a constitutionally proper trial may well be
doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins,
a textbook example of bad facts making bad law. Leonel Torres Herrera
was charged with shooting Officer David Rucker in 1981 and leaving him
to die beside his patrol car in a pool of blood. Also left at the crime
scene was Herrera’s Social Security card. Officer Enrique Carrisalez and
his partner saw Herrera’s car speeding away and gave chase. Herrera
pulled over, and when Carrisalez approached, Herrera shot him in the
chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced
against Herrera was overwhelming. Carrisalez’s partner testified that
Herrera was the shooter, as did the victim himself in the days before he
died. The license plate of the killer’s car matched that of Herrera’s
girlfriend; when Herrera was arrested, he had the car keys in his
pocket. He also had a handwritten letter in which he apologized for the
killings. A jury convicted Herrera of capital murder, he was sentenced
to death. After the verdict, Herrera pleaded guilty to killing Rucker.

Nine years later, Herrera petitioned the Supreme Court to overturn
both convictions. Because so many years had passed and because Herrera
had been convicted in state court, he had to use a legal vehicle called
habeas corpus, a centuries-old, last-ditch remedy that allows prisoners
to argue that their imprisonment violates the federal Constitution.
Because there is a strong presumption that the criminal justice system
functioned correctly in the first instance, only a fraction of these
claims succeed.

Herrera argued that he should be among the lucky few because newly
discovered evidence proved his innocence. The evidence consisted of
three sworn statements. One was written by a lawyer for Herrera’s dead
brother, Raul, claiming that Raul confessed to him that he had killed
Rucker and Carrisalez. The second, signed by a former cellmate of
Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed
that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which
conveniently blamed the murders on a dead man—prove Herrera’s innocence
of the Carrisalez and Rucker murders, the latter of which he flat out
admitted to committing. Herrera’s innocence claim, quite simply, was a
farce. And yet it was this claim that the Supreme Court chose to review
when deciding a profoundly important question: whether any inmate
with newly discovered evidence of innocence could argue that his
conviction had been obtained in violation of the constitutional
guarantees of due process and protection against cruel and unusual
punishment.

Writing for the majority, Chief Justice William Rehnquist said that
Herrera’s constitutional argument had “elemental appeal” but declined to
endorse it because federal courts were not supposed to “relitigate
state trials.” Herrera’s true remedy, Rehnquist said, rested with the
president or the governor of his state, whose power to grant clemency
was the “fail safe in our criminal justice system.” Entertaining actual
innocence claims brought years after the fact were simply too
“disruptive” and unfair to the state, which needed to have things
settled once and for all. Rehnquist mused that even if one assumed,
hypothetically, that an innocence claim could be brought, the bar for
the prisoner to clear “would necessarily be extraordinarily high.”

Concurring in judgment, Justices Antonin Scalia and Clarence Thomas
would have gone even farther. Taking issue with the majority’s mere
hypothetical entertainment of an innocence claim, Scalia wrote: “There
is no basis, tradition, or even in contemporary practice for finding
that in the Constitution the right to demand judicial consideration of
newly discovered evidence of innocence brought forward after a
conviction.” He concluded, “With any luck, we shall avoid ever having to
face this embarrassing question again.”

In 1996, things got even harder for convicted prisoners. Congress
passed a law declaring that federal courts could not overturn a
conviction challenged in habeas corpus petition unless the state court
that heard the case first was either “unreasonable” in applying a law
that was clearly established by the United States Supreme Court or the
state made factual findings that no reasonable person would agree with.

The profound impact of the new law, coupled with the Herrera
decision, was brought into stark relief in the case of Troy Anthony
Davis. Davis, a young black man, was charged with shooting and killing
Mark MacPhail, a white police officer who was trying to protect a
homeless man from being beaten in a parking lot in Savannah, Georgia. At
Davis’ trial in 1991, seven people identified him as the killer, and
two others testified that Davis confessed to them after the fact. The
murder weapon was never recovered, but bullets and shell casings
recovered from the scene came from a .38-caliber pistol. One of the
prosecution’s witnesses was a man named Redd Coles. On
cross-examination, Coles conceded that he had argued with the homeless
man on the night of the crime and that he owned a .38 pistol. The jury
convicted Davis in less than two hours.

Throughout the legal proceedings, Davis maintained his innocence.
After his conviction, as the jurors prepared to deliberate on the
appropriate punishment, Davis asked them to “spare my life,” explaining
that he had been convicted for “offenses I didn’t commit.” The jury
returned with a death sentence. Davis appealed all the way up to the
Georgia Supreme Court. He lost. Then he began filing habeas corpus
petitions, first in Georgia state court and then in federal court. He
lost again.

Then, in 1996, new evidence surfaced. Of the nine crucial prosecution
witnesses, seven recanted some or all of their testimony, stating that
they had felt pressure to identify Davis as the shooter when he was not.
Three witnesses signed sworn statements that Redd Coles had confessed
that he was MacPhail’s killer. Davis went back to state court with the
new evidence, but the courts refused to hear it, saying it was too late.
Davis went back to the federal courts, which agreed that it was too
late. Out of options, Davis appealed to the United States Supreme Court,
arguing that the new evidence should be heard because he was actually
innocent.

The “embarrassing question” was back. In a short order issued on Aug.
17, 2009, the Supreme Court instructed a federal trial court judge to
hold a hearing so that the recanted testimony and new evidence of Coles’
confession could be aired. Scalia and Thomas issued a blistering
dissent. The Supreme Court, Scalia pointed out, had sent the trial judge
on a “fool’s errand” because it has “never held that the
Constitution forbids the execution of a convicted defendant who has had a
full and fair trial but is later able to convince a habeas court that
he is ‘actually innocent.’ ” It was pointless to find Davis innocent
because innocence, by itself, was not a legal basis to overturn the
conviction.

The trial judge held a hearing nonetheless and concluded that Davis
had not shown enough evidence to cast doubt on his conviction. Davis
appealed, arguing that the trial judge had shown a “clear hostility” to
his case. He lost, appealed, and lost again. Meanwhile, Davis’ case had
gained unprecedented international attention. More than a half-million
people signed a petition asking the Georgia State Board of Pardons and
Paroles to commute Davis’ death sentence. Among the signatories were
Archbishop Desmond Tutu, former President Jimmy Carter, and Pope
Benedict XVI. The board denied the petition, and President Obama
declined to intervene in the case.

On Sept. 21, 2011, one hour before Davis was scheduled to be
executed, the Supreme Court reviewed his petition. A few hours later,
they denied it without comment. Davis was now officially out of mercy,
out of appeals, and out of time.

Asked to speak his final words, Davis told the MacPhail family that he
grieved for their loss. “But,” he said, “I am innocent.” He continued,
“For those about to take my life, may God have mercy on your souls.” The
official time of death was 11:08 p.m. More than 1,000 people attended
the funeral.

Whether proof of innocence should be grounds for release—from decades
of wrongful imprisonment and even from death—is an “embarrassing
question” but not in the way that Scalia meant. It is an
embarrassment—it is a scandal—that no such right exists when we know how
often the system gets it wrong. Last year alone, 127 men and women were
freed from prison after their convictions were overturned. Because of
the way that our system is structured, most fall into the category of
the “lucky” ones—lucky because cheating, lying, laziness, or negligence
made their legal proceedings grossly unfair.

There are many more still to be freed. The most conservative estimate
is that there are somewhere between 10,000 and 20,000 innocent people
locked up in the United States today. How many more Troy Davis cases
will the Supreme Court tolerate before it does what is so obviously the
right thing? If the execution of an innocent person isn’t cruel and
unusual punishment, what is?

Lara Bazelon is a the director for the Loyola Law School Project for the
Innocent in Los Angeles and a visiting clinical professor at Loyola.

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Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. Members of the Board of Directors are Sheila Berry, Doug Berry, Ira Robins, Martin Yant, and Dennis Fritz